Judy Raugu Gichu alias Judith Karamana Gichu & 2 others v Elizabeth Ntinyari

3. The application is premised on various grounds. The grounds are: The defendant/Applicant [hereinafter referred to as Applicant ] had filed a suit, namely Meru ELC No. 3 of 2019 [O S]; the suit was heard and determined; the court rendered a judgment on the 05.03.2023; the Applicant ’s suit was dismissed; thereafter the Applicant filed/lodged an appeal vide Nyeri Court of Appeal Civil Appeal Number E061 of 2024; the appeal before the Court of Appeal is pending; the determination of the said appeal may impact upon and affect the subject matter; the hearing and determination of this matter shall prejudice the Applicant; and it is in the interest of justice that the application be allowed. 4. Additionally, the Applicant has posited thus: Following the filing of the appeal before the Court of Appeal, the Applicant filed an application for stay; the application was heard by the Court of Appeal; the Court of Appeal reserved the ruling to be delivered on the 16.10.2026; the ruling is still pending; nevertheless, the Respondents herein have since filed the current suit; the Respondents are keen to prosecute the suit; there is a likelihood that the suit herein may be heard before the determination of the appeal; and the appeal before the Court of Appeal shall be rendered nugatory, unless the orders sought are granted. 5. The application is supported by the affidavit of Elizabeth Ntinyari sworn on the 06.07.2026. The deponent of the supporting affidavit has reiterated the grounds contained in the body of the application. Moreover, the deponent has annexed two key documents to the affidavit. The documents include: Copy of the memorandum of appeal filed before the court; and copy of the application to the Court of Appeal namely; Civil Application Number E020 of 2026. Page 2 of 12

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6. The application under reference was opposed vide grounds of opposition dated the 08.07.2026. The Respondent has contended that: The subject application is barred by the provisions of Section 6 of the Civil Procedure Act; the application violates the doctrine of sub judice; the application is likely to culminate into the issuance of conflicting orders; the subject suit is not related to the appeal pending before the Court of Appeal and the application constitutes an abuse of the due process of the court. 7. The application came up for hearing on the 27.07.2026. The advocates for the parties agreed to canvass the application vide oral submissions. The court thereafter issued directions and the application indeed proceeded to hearing in the manner proposed. 8. Learned counsel for the Applicant adopted the grounds contained in the body of the application; reiterated the averments in the body of the supporting affidavit and thereafter highlighted four [4] key issues. The issues are: The Applicant filed an appeal challenging the judgment issued vide Meru ELC No. 3 of 2019; the appeal is pending hearing and determination; the current proceedings are likely to render the pending appeal nugatory and the Applicant has established /met the threshold for the grant of the orders of stay of proceedings. 9. In addition, learned counsel for the Applicant has also submitted that following the filing of the appeal before the Court of Appeal, namely; Meru Court of Appeal Civil Appeal number E400 of 2026 [formerly Nyeri Court of Appeal Civil Appeal number E061 of 2025], the Applicant Page 3 of 12

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filed an application for stay; and the said application is currently pending delivery of a ruling on the 16.10.2026. In this regard, learned counsel for the Applicant has contended that unless the subject application is allowed, the suit shall proceed and there is a likelihood that the court may issue adverse orders against the Applicant. 10.Flowing from the foregoing, learned counsel for the Applicant implored the court to find and hold that application is meritorious and thus same ought to be allowed. To this end, the court was invited to grant the orders of stay of the current proceedings pending the hearing and determination of the appeal before the Court of Appeal. 11.Learned counsel for the Respondent adopted the grounds dated the 08.07.2026 and thereafter canvassed four [4] key issues. The issues are: The current application is prohibited by the doctrine of sub judice; the application is equally prohibited by the doctrine of res judicata; the current application is likely to culminate into conflicting orders emanating from this court and the Court of Appeal and the application does not meet the threshold for the grant of the orders of stay of proceedings or at all. 12.Furthermore, learned counsel for the Respondent has submitted that the Applicant herein filed an application before the Court of Appeal and wherein same [Applicant] sought various reliefs, including, an order of stay of proceedings like the one beforehand. It was contended that the application was canvassed before the Court of Appeal on the 09.07.2026, but the Court of Appeal did not grant any interim orders. In this regard, it has been contended that the current application constitutes an invitation to Page 4 of 12

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circumvent the proceedings before the Court of Appeal and the orders that may arise therefrom. 13.In a nutshell, the counsel for the Respondents has invited the court to dismiss the application and to award costs to the Respondents. 14.Having reviewed the application; the supporting affidavit thereto; the grounds of opposition filed by the Respondents; and bearing in mind, the applicable principles governing stay of proceedings, three [3] key issues emerge for determination. The issues are: Whether the subject application violates the doctrine of Res sub judice or otherwise; whether the subject application constitutes an abuse of the due process of the court; and whether the Applicant has [sic] met the threshold for the grant of an order of stay of proceedings in terms of Order 42 Rule 6 [1] of the Civil Procedure Rules, 2010. 15.Regarding the first issue, namely; whether the subject application violates the doctrine of Res sub judice or otherwise, it is important to recall that the Applicant herein indeed filed an application dated the 04.03.2026. The said application was mounted before the Court of Appeal and same was assigned as Nyeri Court of Appeal Civil Application number E020 of 2026. The application under reference highlights several reliefs. The reliefs include prayer 6, which states thus: “6. That pending the hearing and determination of Nyeri Court of Appeal Civil Appeal No. E061 of the 2025, the Honourable Court be pleased to issue an order staying the eviction Page 5 of 12

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proceedings in the Environment and Land Court at Meru vide ELC No. E040 of 2025.” 16.The application before the Court of Appeal was indeed filed prior or before the subject application. In this regard, there is no gainsaying that the application before the Court of Appeal was earlier in time. Moreover, it is common ground that one of the prayers sought vide the application before the Court of Appeal, corresponds with the primary reliefs sought herein. 17.The question that does arise is whether the Applicant herein, can file and prosecute an application seeking a similar order, as the one, which was and or has been sought vide a previous application. Surely, an Applicant is obligated to file and prosecute one application and thereafter pursue same [application] to its conclusion. In addition, where such a party is agrieeved with the orders of the court, such a party must proceed in the manner established by the law. The provisions of Order 42 Rule 6 [1] of the Civil Procedure Rules, 2010, stipulate the scheme to be deployed. The Application can be mounted before the Court appealed from, or the Court appealed. 18.Be that as it may, a party, in this case the Applicant, cannot go to the Court of Appeal vide an application; and upon failing to procure a suitable relief, revert to this court, in an endeavor to procure an order which has not been granted by the Court of Appeal. Worse still, such an endeavor cannot be taken during the pendency of such an application before the Court of Appeal, which by dint of Article 164 of Constitution, 2010, is superior to this Court. Page 6 of 12

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19.Without belaboring the point, I am afraid that the current application is caught up by the doctrine of res sub judice. Pertinently, the subject application violates the provisions of Section 6 of the Civil Procedure Act, Chapter 21 Laws of Kenya. 20. The ingredients that underpin the plea of sub judice are common ground. In the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR), the Supreme Court [the Apex Court] stated as hereunder: “The term ‘sub-judice’ is defined in Black’s Law Dictionary 9 th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res subjudice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent Page 7 of 12

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jurisdiction and lastly; that the suits are between the same parties or their representatives. 21.I now wish to turn to the second issue. The second issue relates to whether the subject application constitutes an abuse of the due process of the court. To begin with, the Applicant herein concedes that same had filed an application dated 04.03.2026 before the court of the appeal. 22. In addition, the Applicant admits that one of the reliefs that was sought vide the application before the Court of Appeal is an order of stay of proceedings of the subject suit. 23.Furthermore, the Applicant has also conceded that the application before the Court of Appeal was indeed heard and same is currently scheduled for ruling on the 16.10.2026. To this end, paragraph 7 of the supporting affidavit is instructive. 24.Despite having filed the application before the Court of Appeal; and in spite of the fact of the application is pending ruling; the Applicant herein has chosen to move this court vide an application seeking the same orders as the ones pending before the Court of Appeal. The fact of reverting to this court during the pendency of the application before the Court of Appeal, clearly constitutes an abuse of due process of the court. 25.There is no gainsaying that an Applicant cannot seek the intervention of the Court of Appeal, or any superior court higher in hierarchy; and upon failing to obtain an order thereat, revert to a lower court to obtain that which the higher court declined. Such an endeavor constitutes an attempt to bring the higher court, in this case, the Court of Appeal to disrepute. The law frowns upon such conduct. Page 8 of 12

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26.I have pointed out that the subject application constitutes an abuse of the court process. Such conduct ought not to be encouraged. On the contrary, litigants and their advocates, ought to nurture and embrace the objectives espoused Sections 1A and 1B of the Civil Procedure Act, Chapter 21 Laws of Kenya. 27.The concept of abuse of court process has been illuminated vide various decisions. It suffices to reference the holding in the case of Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] KESC 27 (KLR), where the Supreme court stated thus: “The concept of “abuse of the process of the Court” bears no fixed meaning, but has to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the goals of justice. The bottom line in a case of abuse of Court process is that, it “appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak to be beyond redemption…”….Beyond that threshold, lies an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.” 28.Simply put, it is my finding and holding that the current application indeed, constitutes an abuse of the due process of the court. Page 9 of 12

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29.The last issue that falls for determination is whether the Applicant has met the threshold for an order of stay of proceedings in terms of Order 42 Rule 6 [1] of the Civil Procedure Rules, 2010. There is no gain saying that the provisions under reference can only be invoked where an appeal has been filed arising from an order or decree emanating from the primary proceedings. In this case, the primary proceedings are the ones herein, namely; the instant proceeding[s]. 30.The question that does arise is whether the appeal, namely; Meru Court of Appeal civil appeal number E400 of 2026 [formerly Nyeri Court of Appeal number E061 of 2025] relates to the subject matter or otherwise. To my mind, the appeal before the Court of Appeal relates to Meru ELC Number 3 of 2019 and not the current suit. 31.It then means that the current proceedings, that is, Meru ELC E40 of 2025, are not impacted upon or affected by the appeal before the Court of Appeal. Put differently, the proceedings and consequential orders by the Court of Appeal [if at all] will only impeach the decisions made in Meru ELC Number 3 of 2019. To this end, I am afraid that the provisions of Order 42 Rule 6 [1] of the Civil Procedure Rules, 2010 are irrelevant. 32.Moreover, it is not lost on me that an order of stay of proceedings, has serious ramifications and consequences. Such an order impacts on the implications of Article 159 [2][b] of the Constitution, 2010; and hence same can only be granted sparingly and with necessary circumspection. A party seeking such an order must demonstrate the exceptional circumstances [if any] underpinning the application. Page 10 of 12

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33.In respect of the subject matter, the Applicant has not demonstrated the exceptional circumstances. In any event, there is no gain saying that the Applicant herein, shall have an opportunity to challenge the suit beforehand and also to tender evidence, before the trial court can make any decision. Clearly, there is no prejudice; or injustice [if any] that the Applicant, shall suffer to warrant the orders sought. [See the holding in Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR). Conclusion: 34.The Applicant herein was obligated to plead and prove the exceptional/ peculiar circumstance[s] underpinning the prayer for stay of Proceeding[s]. However, the Applicant has not established or met the threshold for stay of proceedings. Quite clearly, the prayer for stay of proceedings, is not only misconceived, but same is untenable and has been mounted in vacuum. 35.Additionally, I have pointed out that the filing of the subject application during the pendency of the ruling by the court of the appeal on a similar application, constitutes an abuse of the court process. 36.In the premises, I think I have said enough to demonstrate that the application is bereft of merits. The application is a sure candidate for dismissal. Final orders: 37.In the end, the final orders that commend themselves to the court are: Page 11 of 12

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i. The Application dated 06.07.2026 be and is hereby Dismissed. ii. Costs of the Application be and are hereby awarded to the Respondents. iii. The costs in terms of clause [ii] shall be agreed upon in default be taxed in the usual manner. 38.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 21ST DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo Mr. Kariuki for the Applicant Mr. Joel Mutuma for the Respondents Page 12 of 12

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